Oct 4, 2017 | Agendas, Events, News
Today starts a five-day Strategic Litigation Retreat for lawyers in Ferney-Voltaire, France organized by the ICJ-EI as part of the EU and OSI funded FAIR project.
Twenty lawyers from Bulgaria, Germany, Greece, Italy, Ireland, Malta and Spain will be meeting with experts and among themselves in order to strategize about their cases of access to justice for migrant children and on accessing international human rights mechanisms.
The retreat is taking place from 4 to 8 October in a close proximity to Geneva, which allows for access to UN treaty bodies experts.
The group will meet with Members of the UN Committee on the rights of the child and the UN Committee on Economic, Social and Cultural Rights and experts from the treaty bodies’ secretariat on individual complaints and on inquiries.
The participants will also have a chance to discuss litigation strategies with experts from the European Court for Human Rights, experts from civil society organizations with long-standing experience in strategic litigation, such as the AIRE Center, ICJ, DCI Belgium or Child Rights Connect.
All the participating lawyers took part in the national trainings organized, through 2016 and 2017, by the ICJ and its national partners.
The trainings were focused on the right to be heard and procedural rights of migrant children, the right to family life, economic, social and cultural rights, detention and on how to access international human rights mechanisms in order to allow for effective access to justice for migrant children.
Out of all the participants, this Strategic Litigation Retreat, brings together three selected lawyers from each of the national trainings.
In the same time, the project management group of the FAIR project, composed of national partners and Child Rights Connect will meet and will contribute to some parts of the Retreat.
The Retreat will use as a basis the draft training materials prepared by the ICJ (to be published an the end of 2017) and the ICJ Practitioners Guide no. 6: Migration and International Human Rights Law.
The FAIR project co-funded by the Rights, Equality and Citizenship Programme of the European Union and OSIFE.
See more information about the national trainings on the rights of migrant children within the FAIR project here: Spain, Italy, Bulgaria, Malta, Greece, Ireland, Germany (photo)
Download the agenda here: Universal-StrategicLitigationRetreat-News-Events-Agendas-2017-ENG
Sep 14, 2017 | Advocacy, Cases, Legal submissions, News
On 13 September, the European Committee of Social Rights decided on the admissibility of the collective complaint submitted by the ICJ and Forum for Human Rights, against the Czech Republic.
The Committee assessed the admissibility conditions set out in the Protocol and the Committee’s Rules and the Government’s objections on admissibility and declared the complaint admissible. The Czech Government has now two months to make written submissions on the merits of the complaint.
The complaint argues that the Czech Republic fails to ensure equal legal protection and participation of children below the age of criminal responsibility in the pre-trial stage of juvenile justice procedures.
The ICJ and FORUM submit that serious systemic flaws in the Czech juvenile justice system deprive a specific group of particularly vulnerable individuals – children below the age of criminal responsibility – of an adequate level of social protection and leave them at risk of inappropriate or unfair procedures leading to arbitrary punitive measures, in violation of Article 17 of the European Social Charter, both alone and read in conjunction with the principle of equality in the preamble to the Charter.
Europe-ECSR-ICJvCzechRepublic-ChildrenJustice-AdmissibilityDecision-2017 (download the Committee’s decision)
May 30, 2017 | News, Op-eds
An opinion piece by Sean Bain, ICJ legal consultant in Myanmar, and Vicky Bowman, Director of the Myanmar Centre for Responsible Business.
A strategic environmental assessment is needed to enable sustainable development and the fulfilment of human rights for the people of Kyaukphyu, the site of a planned SEZ and deep-sea port.
In its interim report released in March, the Advisory Commission on Rakhine State chaired by former United Nations secretary-general Kofi Annan, called for a comprehensive assessment of the special economic zone in Kyaukphyu Township.
The aim would be to “explore how the SEZ may affect local communities and map how other economic sectors in the state may benefit (or possibly suffer) from the SEZ”.
The State Counsellor’s Office endorsed the commission’s interim recommendations, including for this assessment.
The call for a comprehensive assessment in Kyaukphyu echoes a proposal from our organisations, the Myanmar Centre for Responsible Business and the International Commission of Jurists, for the government to undertake a strategic environmental assessment.
Its purpose would be to address concerns about human rights and to consider the cumulative environmental and social impacts of planned developments. Oxfam has put forward a similar recommendation to the government.
Our recommendation comes as media reports this month suggest that the government is giving renewed attention to the future of the SEZ and related projects in Kyaukphyu.
The SEZ, which has been planned to include industrial parks along with deep-sea ports and transport links to China, would transform the demographic and economic character of Rakhine State’s central coast and hinterlands.
It would have significant impacts for local communities and the state economy, both during and beyond the envisaged 20-year construction period.
Kyaukphyu – already the starting point for oil and gas pipelines to China – would host the largest development project ever undertaken in Rakhine State.
Financed mostly by Chinese investors, with shipping facilities linking Myanmar to international routes through the Bay of Bengal, the project also has national and regional economic significance.
However, to date there has been insufficient consideration of the impacts, either positive or negative, on the livelihoods and human rights of residents and the economy of Rakhine State.
Plans for the SEZ are ambitious yet detailed information is scarce and so far there has been no genuine public participation in planning processes.
While contracts and payments regarding investments are decided in Myanmar’s economic and political capitals, it is at the local level that negative impacts can be felt the most.
It is also at the local level where economic benefits may be enhanced.
To address negative impacts and enable benefits, a joined-up approach that brings together national and local government and local and foreign companies with the people of the area is needed.
At present, a lack of coordination across ministries, and between national and regional governments is limiting the scope to harness opportunities and manage impacts of investments.
Despite their significance, neither the SEZ and deep-sea ports nor the offshore gas projects serviced from Kyaukphyu are included in Rakhine State’s socioeconomic development plan.
We believe a strategic environmental assessment is needed to enable sustainable development and the fulfilment of human rights in the Kyaukphyu area.
Strategic environmental assessments, which are part of Myanmar law, are defined in the 2015 Environmental Impact Procedure as “a range of analytical and participatory approaches that aim to integrate environment into policies, plans and programs and evaluate the inter-linkages with economic and social considerations.
The principle is to integrate environment, alongside economic and social concerns, into a holistic sustainability assessment.”
Unlike an environmental impact assessment, which is a permitting requirement for individual projects, a strategic environmental assessment takes a holistic approach by integrating environmental and social concerns and human rights protection, to produce a big picture view of the impacts of interrelated projects.
At Kyaukphyu, the national and state governments – drawing on financial and technical assistance from development and human rights partners – could commission expert independent consultants to undertake the necessary studies and analysis to produce such an assessment.
The assessment would consider the cumulative human rights and environmental impacts of the SEZ, seaports, pipelines, offshore gas developments and transport and energy infrastructure, including impacts on traditional fishing and farming livelihoods in Kyaukphyu.
It could address how best to avoid or minimise the physical and economic displacement of residents, and how to reduce the potential for local tensions and conflict associated with expected socioeconomic transformations.
A legal framework – based on international law and standards – for protecting human rights during economic displacement and resettlement needs to be put in place. That’s not just for the SEZs, but for all projects.
While insufficient to address the lack of legal accountability in the SEZ Law and the limited access to justice in Myanmar, a strategic environmental assessment could improve transparency and give voice to the views of local communities, businesses, civil society organisations and other stakeholders.
This would help fill major gaps in planning and decision-making processes thus far.
Consultation is critical to the value and legitimacy of any assessment but too often it is tokenistic or minimised to cut costs and time.
Development partners should ensure that they are funding genuine and extensive public participation.
A lesson from Myanmar’s only other assessment of this kind, currently underway with support from the International Finance Corporation focused on the hydropower sector, has been the need to communicate and engage constantly about the purpose and process of the assessment.
Many civil society groups chose not to participate in consultations for the IFC-backed assessment due to scepticism and lack of confidence in the process.
To learn from this experience, international and local NGOs in Kyaukphyu could share information and support communities to make informed decisions about their engagement with a strategic environmental assessment.
Until there is a concrete and transparent plan to manage impacts from development projects in Kyaukphyu, particularly those with negative impacts on human rights, current preparations for the SEZ should be put on hold.
This includes land acquisition that is underway and risks violating the rights of local residents.
The government should also delay entering into investment agreements with the winning consortium of developers, which is led by China’s CITIC Group, until there has been broader multi-stakeholder debate about the SEZ, and how it may develop and interact with other investments in the area.
A strategic environmental assessment in Kyaukphyu could contribute towards correcting a development process that has so far not contributed meaningfully to the realisation of human rights or addressed the economic needs of the population in Kyaukphyu or Rakhine State.
We hope that the Myanmar government at national and state level as well as development partners will take this forward, building on the advisory commission’s recommendation and its endorsement by the state counsellor.
Feb 27, 2017 | News, Publications, Reports, Thematic reports
The Government of Myanmar should impose a moratorium on the development of Special Economic Zones (SEZs) until it can ensure SEZs can be developed inline with international human rights laws and standards, said the ICJ at a report launch held today in Yangon.
The 88-page report, entitled Special Economic Zones in Myanmar and the State Duty to Protect Human rights, assesses the laws governing Myanmar’s SEZs and finds that the legal framework is not consistent with the State’s duty to protect human rights.
For example, a case study examining the Kyauk Phyu SEZ in Rakhine State shows that the land acquisition process initiated in early 2016 lacks transparency, does not comply with national laws on land acquisition, and risks violating the rights of 20,000 residents facing displacement.
“The SEZ Law undermines the protection of human rights, and critical legal procedures are often poorly implemented, so the Kyauk Phyu project risks repeating the rights violations that have been associated with SEZs in the past,” said Sam Zarifi, the ICJ’s Asia Director.
“The NLD-led Government can make a break from the past by ensuring economic development projects benefit Myanmar’s people, rather than rushing to facilitate projects which result in human rights violations and ultimately undermine sustainable development,” he added.
Myanmar’s legal framework for SEZs is based on the 2014 SEZ Law and incorporating national laws governing land, labour and the environment.
The report shows that while national laws require Environmental Impact Assessments and the application of international standards on involuntary resettlement, the SEZ Law does not establish clear accountabilities for the implementation of these procedures.
This has contributed to human rights violations and abuses in each of Myanmar’s three SEZs, the report says.
“It has been encouraging that government officials have emphasized their commitment to protecting human rights in SEZs in line with the rule of law,” said Sean Bain, the ICJ’s Legal Consultant in Myanmar and lead author of the report.
“The legal reforms recommended in this report will be critical to meet these commitments while fulfilling the State’s duty to protect human rights in SEZs. We also suggest that investors take heightened due diligence measures to ensure they are not complicit in rights violations,” he added.
The report was based on extensive legal research as well as interviews with over 100 people, from affected communities to investors and government officials, during 2016.
Key recommendations to the Government of Myanmar
- Protect human rights in Myanmar’s SEZs by amending the SEZ Law, through meaningful public consultation in accordance with international standards.
- Order a moratorium on the development of SEZs, and on entering related investment agreements, until the SEZ Law has been amended to ensure conformity with international human rights law and standards.
- Commission a Strategic Environmental Assessment for the Kyauk Phyu SEZ, in line with Myanmar’s environmental conservation laws. This would involve consultation to inform decision-making on the Kyauk Phyu SEZ and related projects, by identifying cumulative environmental and social impacts of all the developments in Kyauk Phyu, while considering conflict dynamics and economic development in Rakhine State.
- Suspend land acquisition in Kyauk Phyu until after the completion of a resettlement plan that is in line with international standards, as required in the EIA Procedure.
Contact
Sean Bain, ICJ Legal Consultant in Myanmar, t: +95 9263533230 ; e: sean.bain(a)icj.org
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-ENG (full report, in PDF)
Myanmar-SEZ assessment SUMMARY-Publications-Reports-Thematic reports-2017-ENG (executive summary of the report, in PDF)
Myanmar-SEZ assessment full-Publications-Reports-Thematic reports-2017-BUR (Burmese version of full report, in PDF)
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-BUR (Burmese version of the executive summary, in PDF)
Feb 13, 2017 | News
The workshop, held from 11-12 February in Sittwe, brought lawyers and civil society together to discuss of experiences of strategic litigation elsewhere in Myanmar and the region, and consider potential public purpose litigation cases in Rakhine State.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser in Myanmar, provided an introduction to strategic litigation as a method for promoting accountability in a time of transition in governance.
He noted the critical role of independent lawyers in protecting human rights, by representing clients from all communities in Rakhine State.
And he emphasized the importance of strategic litigation as a means to prevent violations and abuses of human rights, or to seek reparations where violations and abuses have occurred.
Kingsley Abbot and Jintana Sakulborirak, from the ICJ’s Asia Regional Office in Thailand, discussed strategic litigation cases from the region, including in northern Thailand where community members have launched an action to appeal the legality of land acquisition for a planned SEZ in Tak Province.
The cases highlighted how media engagement is a critical part of strategic litigation, to raise public attention on human rights issues and demands for accountability in the implementation of investment projects.
Daw Aye Mon Thu, advocate from Dawei Pro Bono Lawyers Network presented the experiences of Heinda Mine cases from Dawei Region, Southern Myanmar, emphasizing the importance of trust-building and cooperation with local community as stake-holder. Such a strategic litigation cases are extremely rare in Myanmar.
Discussions followed about potential cases for strategic litigation from Kyauk Phyu and Sittwe, including issues related to land acquisition for railways construction and an SEZ appear to have been carried out unlawfully in violation of human rights.
Participants discussed the principle of undertaking litigation for broader advocacy objectives rather than solely focusing on actually winning the case in the court.
They also reflected on the challenges and limitations for Myanmar lawyers to undertake strategic litigation.
Highlighting the vital role of lawyers, speakers encouraged participants to consider strategic litigation as a means to challenge unlawful acts that violate or abuse human rights, particularly accompanying business enterprises.
Rakhine State is among Myanmar’s poorest and most isolated provinces, where lawyers and CSOs have had limited exposure to concepts of human rights and international laws.
This workshop, the first of its kind to be held in Rakhine State, is part of efforts to address this gap by building legal literacy on international human rights law and lawyers to consider litigation as a strategy to protect human rights.
